AJOB Empirical Bioethics

VOL. 9 No. 3 | November 2018

07/02/2018

Supreme Court watchers always eagerly anticipate the last week of June because that is when the highest court in the land usually reaches decisions in its most controversial cases. Last week did not disappoint — several of the decisions were reached by the slimmest of majorities (the infamous 5-4 vote). Then, to add to the excitement, one of the longest serving justices, Anthony Kennedy, announced his retirement, giving the talking heads of cable news seemingly endless fodder for roundtable discussions.

In the midst of the frenzy, a few observers noted the words of Chief Justice John Roberts at the end of his Trump v. Hawaiiopinion. The dissent in the case brought up Korematsu, the decision from the 1940s which concluded that the internment of American citizens of Japanese descent was constitutional. Roberts disagreed with the dissent, but offered this assessment of Korematsu:

“The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is al­ready obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—‘has no place in law under the Constitu­tion.’ 323 U. S., at 248 (Jackson, J., dissenting).”

Bioethics should affirm the basic dignity of all humanity. It reacts strongly to governments using people for experimentation against their will, or to the preferential treatment of one people group over another, or any number of other abuses that have arisen over the years. Those from the Judeo-Christian perspective often link this to the biblical teaching of the image of God (see the powerful book by John Kilner, Dignity and Destiny). From my perspective, it means hearing the voice of those who do not normally have a voice and affirming the rights of those whom society so casually overlooks.

Looking back seventy-plus years, Chief Justice Roberts sees the issues of Korematsu clearly. Sadly, for the many American citizens of Japanese descent interred during the Second World War, there were only three Supreme Court justices who stood with them against such horrific treatment. Korematsu is a sobering reminder of what can happen when the powerful trample the powerless. During this Fourth of July week, I will celebrate that this decision has been placed in its rightful place, the ash heap of history.